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High Court negligence decision is a reminder to organisations to proactively safeguard workers’ mental health

15 June 2022

The High Court has found that the Victorian Office of Public Prosecutions was negligent in failing to protect the mental health of a lawyer exposed to vicarious trauma in her work.

Kozarov v State of Victoria [2022] HCA 12 is an important reminder to all not-for-profit organisations to prioritise the psychological safety of their employees and volunteers, particularly where their roles involve clear risks of psychological harm.

What happened to Ms Kozarov?

Ms Kozarov worked as a lawyer in the Specialist Sexual Offices Unit (SSOU), a unit in the Victorian Office of Public Prosecutions (OPP) that prosecuted serious sexual offences. Ms Kozarov's work at the SSOU involved child sexual abuse cases.

After a few years of working in the SSOU, Ms Kozarov, along with her colleagues, began to complain about her excessive work load, the stress of her job, and the impact on her personal life. It came to a head when Ms Kozarov had a dispute with her manager after returning from a period of sick leave. Her manager told her that she wasn’t coping with her work. Ms Kozarov responded with a series of long, detailed and emotionally charged emails explaining that she had ‘returned to do [her] normal duties despite [her] doctor recommending [she] take further time to recover’.

A few months later, Ms Kozarov was diagnosed with post-traumatic stress disorder caused by the vicarious trauma from her employment and was later diagnosed with major depressive disorder. Ms Kozarov sought help from a psychologist and took some leave from her work while unsuccessfully requesting to be rotated out the SSOU. Ultimately, Ms Kozarov's employment was terminated.

What did the High Court say?

The High Court found that the OPP had breached its duty of care to Ms Kozarov.

The OPP had a duty of care to Ms Kozarov to take all reasonable steps to prevent foreseeable harm to Ms Kozarov and other workers. As the SSOU had a Vicarious Trauma policy, it was clear that the OPP knew psychological harm was inherent to the role and was a foreseeable risk.

The Court said that because Ms Kozarov’s role was ’inherently and obviously dangerous’ to her psychiatric health, the OPP had a duty to proactively check on her welfare and put measures in place to make sure she could do her job safely. It wasn’t enough to wait for signs that her mental health was suffering.

In any case, by the time of her dispute with her manager, the OPP was on notice that Ms Kozarov was struggling and still did not implement the protective measures outlined in its vicarious trauma policy that could have prevented her condition from becoming worse. Such measures might have included better training for management about the risks of PTSD, welfare checks, a flexible approach to work allocation, the option to be referred for occupational screening, and the option of rotating out of the SSOU.

What does this mean for your organisation?

This case should send a clear message to all organisations, including not-for-profits, that:

  1. The duty of care to provide a safe working environment is not just about physical health, but also mental health
  2. Organisations should understand the psychological risks involved in the work they ask people to do
  3. Organisations must take reasonable steps to prevent psychological harm, and should be proactive where there are obvious risks to mental health
  4. It is not enough to have workplace safety policies that are not actively implemented, and
  5. Organisations should promote a culture of safety to ensure workers are able to speak up and get the support they need.

If you would like to understand more about your organisation’s obligations to its workers, see our resources on negligence and work health and safety.